Means on Solving the "King Lear Problem" @UofSCLaw

Benajmin Means, University of South Carolina School of Law, is publishing Solving the 'King Lear Problem' in volume 12 of the U.C. Irvine L. Rev. Here is the abstract.

In Shakespeare’s play, King Lear, an aging ruler relinquished control to two of his three daughters. The succession failed miserably, destroying his family and destabilizing his kingdom. King Lear shows why few family businesses survive beyond three generations. Understanding Lear’s failure is crucial to avoiding Lear’s fate, whether the family business in question is a monarchy, a media empire, or a hardware store. The conventional wisdom is that Lear gave away his kingdom too soon and left himself vulnerable to predatory heirs. This has been referred to as the “King Lear Problem.” The conventional wisdom is wrong. Lear’s succession plan failed because he waited too long. Like Lear, those who control family businesses are often reluctant to step aside. For example, until he was well into his 90s, Sumner Redstone declared this his succession plan was to never die. The predictable consequence was litigation that engulfed the companies he controlled, including CBS and Viacom. Yet, despite its importance, the question of family-business succession has been neglected by legal scholars. Using King Lear as a framing device, this Article identifies obstacles to succession and shows how legislative initiatives, judicial intervention, and private ordering can facilitate the timely transfer of ownership and control across generations.

Download the article from SSRN at the link.

Bonfield on Britain's Brief Encounter With Forced Heirship @NYLawSchool

Lloyd Bonfield, New York Law School, has published Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship. Here is the abstract.

This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued, and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence of directions by settlement or will, and the dialogue is used as a lens to view the nexus between inheritance customs and broader political, economic and social concerns. The intensity of the dispute over primogeniture suggests that more was at stake than simply the devolution of land. The controversy in the Commons over the proposed legislation encompassed a discussion on the variety of purposes that succession law should serve. Lurking in the background in the debate over the proposed bill was a more abstract conundrum: should succession laws primarily be crafted to serve political ends, the constitution; or was it more appropriate to calibrate them to foster desirable social, economic or familial goals? In short, the debate put into sharp focus the question of what interests drive inheritance law, and how attempts can be made to modify it, if and when such concerns alter over time. The bill failed, and it would be for another century for Parliament to abolish primogeniture.

Download the article from SSRN at the link.

Domingo on the Roman Law of Succession @EmoryLaw

Rafael Domingo, Emory University School of Law; University of Navarra, has published The Roman Law of Succession. An Overview. Here is the abstract.

The law of succession addresses the legal destiny of a person’s rights and duties after his death. Closely tied to the fundamental and peculiar features of Roman family and society, the law of succession presents vast difficulties for Roman lawyers because of its highly sophisticated nature and lack of systematic coherence. It is no coincidence that eleven out of fifty books in the Digest address the law of succession. The development of the law of succession reflects important social changes in Roman economic structures and value systems. It echoes the progression from an old Roman agrarian society to a new commercial one. From a technical legal perspective, the law of succession reveals the tension between civil law and praetorian law. Without formally altering the civil law, the praetor introduced fundamental adjustments to protect emancipated persons, blood relatives in the female line, and surviving spouses, among others.

Download the article from SSRN at the link.

Zimmermann on the Comparative Law of Successions and Cultural Differences

Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law, has published Kulturelle Prägung des Erbrechts? (Does the Law of Succession Reflect Cultural Differences?) at 71 JuristenZeitung (JZ) 321 (April 2016). Here is the abstract.

Deutsche Zusammenfassung: Nach weit verbreiteter Auffassung ist das Erbrecht eine in besonderem Maße kulturell verwurzelte Materie. Damit verbunden ist die Einschätzung, dass dem Erbrecht eine „Tendenz zur Bewahrung“ eigentümlich sei, und dass kritisch wertende Rechtsvergleichung oder gar Rechtsvereinheitlichung kaum Erfolg versprechen. Der vorliegende Beitrag stellt diese Ansichten infrage. Aufgezeigt werden unter anderem rechtsordnungsübergreifende Konstanten und Entwicklungstendenzen, Möglichkeiten kritischer Reflexion und historische Beispiele von Rechtsrezeption, Rechtsvereinheitlichung und Rechtsänderung. Inhaltlich befasst sich der Beitrag nur mit zwei, allerdings zentralen Problemkomplexen: Testamentsformen und gesetzliche Erbfolgeordnung. English Abstract: It is widely thought that the law of succession reflects deeply-rooted cultural differences. Related to this is the idea that the law of succession is a subject marked by resistance to change; and also the perception that critical comparative studies or attempts at legal unification are unpromising endeavours. The present essay challenges these views. It points out transsystematic reference points and trends of legal development, possibilities for critical reflection, historical examples of legal transplants, legal unification, and legal change, as well as other phenomena which are incompatible with the prevailing view. All examples are taken from only two, though central, fields: testamentary formalities and the rules on intestate succession. Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Mohr Siebeck. All full-text JuristenZeitung articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet. Downloadable document is in German.

Download the article from SSRN at the link.

Legal History and Rules of Succession In "Game of Thrones"

Jaakko Husa, University of Lapland Faculty of Law, has published Exploring Imaginative Legal History: The Legalism of the House Stark in the Game of Thrones at 20 Media & Arts Law Review 181 (2015). Here is the abstract.

This article examines George R R Martin’s imaginative historical narrative in his book series A Song of Ice and Fire. The first book of the series (A Game of Thrones) is highlighted and discussed from the points of view of legal history and applied legal theory. The article concentrates on the legal mentality of one of the noble Houses in A Game of Thrones and discusses Martin’s rich narrative in its relation to the real feudal legal history and jurisprudential frameworks it displays. Analysis focuses on the rules of succession. It will be argued that even though the House Stark’s attitude and mentality can be labelled as legalistic and surprisingly modern it can be seen as a natural part of the imaginative feudal world of A Game of Thrones. The article concludes that, by studying the legalistic attitude and mentality of the House Stark, we can also learn about the legal theoretical nature of modern legalism. Paradoxically, it is also suggested that the study of imaginative legal history deepens our understanding of ‘real’ legal history. Moreover, the author argues that analysis of imaginative legal history expands our legal mind and immerses us in alternative horizons of law.

Download the article from SSRN at the link.

Testamentary Proceedings In Spanish East Florida in the Late Eighteenth and Early Nineteenth Centuries

M. C. Mirow, Florida International University (FIU) College of Law, has published Testamentary Proceedings in Spanish East Florida, 1783-1821 in Canon Law and Common Law in Honor of R. H. Helmholz 281-301 (Troy L. Harris ed.; Berkeley: The Robbins Collections, 2015). Here is the abstract.

The East Florida Papers in the Library of Congress reveal a great deal about law, legal institutions, legal practice, and legality in colonial Florida during the second Spanish period from 1783 to 1821. This contribution provides an initial study of the 372 testamentary proceedings related to 168 decedents recorded in these papers. It describes these cases and discusses the dossier of one case to illustrate the administrative and legal work done by Spanish officials to distribute a decedent's property.

Proceedings include individual claims for debts against estates; sets of documents related to the administration of estates such as wills, inventories, birth records, and marriage records; and a variety of petitions dealing with administration and the distribution of property. The materials provide a window into will making, family life and structure, commerce, women, and accidental and suspicious deaths. Numerous petitions sought the disposition, transfer, and manumission of slaves. The contribution concludes with a description and analysis of the documents related to the estate of Pedro Dimarache, a Corsican carpenter who died testate in St. Augustine in 1792.

Download the essay from SSRN at the link.